(translation updated, September 26, 2020)
Civil Code of the People's Republic of China
Civil Code of the People's Republic of China
Passed by the National People's Congress on May 28, 2020, effective January 1, 2021
China's National People's Congress on May 28, 2020, passed the long in gestation Civil Law Code.
We first published a translation of the Third Draft but now have completed our translation of the tort chapter of the Civil Code as passed. It can also be found on SSRN at https://ssrn.com/abstract=3624921
Comments and corrections are welcome.
Comments and corrections are welcome.
Chapter 7 replaces the 2009 Tort Law. In an August 4，2020 article posted on the website of the Supreme People's Procurate, a key adviser, Professor Yang Lixing 杨 立新 of People's University Law School explains the objective of the "Civil Code section on responsibility for infringement is to express clearly Chinese characteristics, showing that mainly by carrying out a merger of the continental system of law and the Anglo American legal system; keeping up with the times; establishing new norms of responsibility; responding to the requirements of society; removing inappropriate rules of responsibility for infringement; expanding the extent of harms; and safeguarding the principal rights of freedom of action."民法典侵权责任编具有鲜明的中国特色，主要表现在：实现大陆法系和英美法系融合；紧跟时代发展；制定新的侵权责任规范，回应社会提出的需求；修改不当的侵权责任规则；救济权利损害，保障民事主体行使权利的行为自由"
The reader will note that although we use the word “tort” in the title we generally abjure Anglo-American terms of art in order to more accurately capture the Chinese syntax. E.G. we would render 侵害他人承担侵权 责任 as “to bear responsibility for infringement of the rights of another”.
Another version, which draws substantially on ours can be found at China Law Translate Code Section 7 begins at Article 1164.
- GWC
The twentieth century in China was dominated by transformation from empire to Republic, then invasion, civil war, and revolution. Contemporary Chinese law began afresh in 1978 with the policy of “reform and opening” announced by Deng Xiaoping, who from 1977 to 1992 was the most prominent of the Chinese leaders, though he never became President or Chairman of the CP. After a half century of war, invasion, and revolution Deng was the architect of a policy of modernization. Universities returned to normal, and China began its rapid economic rise. Important to Deng’s program was the normalization of the legal system which had nearly collapsed.
In 1986 the legislature – the National People’s Congress adopted the General Principles of Civil Law. embraced a broad swath basic principles of civil law, including liability in tort. Over the next fifteen years law schools were built and progress in the professionalization of the courts was remarkable as the country adopted laws that brought it into conformity with the international trade system.
But Chinese legal academic leaders traced their emerging law to Germany via Japan and Russia (then the USSR). So their aspiration was to adopt a comprehensive civil code. In 2002 a discussion draft was circulated and moved toward legislative consideration. One Section of that draft civil code dealt with tort liability. But controversy – particularly regarding the law of property – stalled consideration of the tort section of the civil code. I commented on the development of the law of tort and translated the draft code. It was published as A New Tort Code emerges in China An introduction to the discussion and a Translation of Chapter 8 - Tort Law of the Official Discussion Draft of the Proposed Revised Civil Code, 30 Fordham International Law Journal 935 (2007)
In 2009 the National People’s Congress passed the Tort Law [WIPO translation] as a stand-alone law. That law has been the basic framework of China’s tort law since then. But it should be recognized that causes of action are typically grounded in specific laws such as the Traffic Safety Law, the Environmental Protection Law, etc.
The 2009 tort law has, of course, been the subject of commentary. See Mo Zhang, Introduction to Chinese Torts Law (2014); Benjamin L. Liebman, Malpractice Mobs: Medical Dispute Resolution in China, 113 Colum L. Rev. 181 (2013) and Wei Zhang Understanding the Law of Torts in China: A Political Economy Perspective in the University of Pennsylvania Asian Law Review (2018). But a meaningful survey of that literature will await another day. See also Mark Jia, Chinese Common Law? Guiding Cases and Judicial Reform, 129 Ħǻřv. Ŀ. Řěv. 2213 (2016)
The basic model that China’s legal authorities have in mind is the Continental civil law best exemplified by the German Civil Code. Development of the comprehensive code progressed slowly. It was intended not to transform the civil law but to provide a foundation for the law as it was in fact being developed by the steadily advancing array of statutory law. In 2017 the first section of the Code was passed as Basic Principles. In May 2020 the National People’s Congress met during the twin crises of instability in Hong Kong and the covid19 pandemic. It passed the comprehensive civil code.
The Civil Code replaces the elements which had previously been passed as stand-alone items. They include:
In 1986 the legislature – the National People’s Congress adopted the General Principles of Civil Law. embraced a broad swath basic principles of civil law, including liability in tort. Over the next fifteen years law schools were built and progress in the professionalization of the courts was remarkable as the country adopted laws that brought it into conformity with the international trade system.
But Chinese legal academic leaders traced their emerging law to Germany via Japan and Russia (then the USSR). So their aspiration was to adopt a comprehensive civil code. In 2002 a discussion draft was circulated and moved toward legislative consideration. One Section of that draft civil code dealt with tort liability. But controversy – particularly regarding the law of property – stalled consideration of the tort section of the civil code. I commented on the development of the law of tort and translated the draft code. It was published as A New Tort Code emerges in China An introduction to the discussion and a Translation of Chapter 8 - Tort Law of the Official Discussion Draft of the Proposed Revised Civil Code, 30 Fordham International Law Journal 935 (2007)
In 2009 the National People’s Congress passed the Tort Law [WIPO translation] as a stand-alone law. That law has been the basic framework of China’s tort law since then. But it should be recognized that causes of action are typically grounded in specific laws such as the Traffic Safety Law, the Environmental Protection Law, etc.
The 2009 tort law has, of course, been the subject of commentary. See Mo Zhang, Introduction to Chinese Torts Law (2014); Benjamin L. Liebman, Malpractice Mobs: Medical Dispute Resolution in China, 113 Colum L. Rev. 181 (2013) and Wei Zhang Understanding the Law of Torts in China: A Political Economy Perspective in the University of Pennsylvania Asian Law Review (2018). But a meaningful survey of that literature will await another day. See also Mark Jia, Chinese Common Law? Guiding Cases and Judicial Reform, 129 Ħǻřv. Ŀ. Řěv. 2213 (2016)
The basic model that China’s legal authorities have in mind is the Continental civil law best exemplified by the German Civil Code. Development of the comprehensive code progressed slowly. It was intended not to transform the civil law but to provide a foundation for the law as it was in fact being developed by the steadily advancing array of statutory law. In 2017 the first section of the Code was passed as Basic Principles. In May 2020 the National People’s Congress met during the twin crises of instability in Hong Kong and the covid19 pandemic. It passed the comprehensive civil code.
The Civil Code replaces the elements which had previously been passed as stand-alone items. They include:
o Marriage Law [婚姻法]
o Inheritance Law [继承法]
o General Principles of Civil Law [民法通则]
o Adoption Law [收养法]
o Guaranty Law [担保法]
o Contracts Law [合同法]
o Rights in Rem Law [物权法]
o Tort Liability Law [侵权责任法]
o General Provisions of Civil Law [民法总则]
- GWC
September 26, 2020
Conk, George W., Translation: Tort Liability – Section 7 – Civil Code of the People’s Republic of China (June 11, 2020). Fordham Law Legal Studies Research Paper No. 3624921. Available at SSRN: https://ssrn.com/abstract=3624921
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